Mrs. Archana Bhalla, New Delhi V. DCIT, New Delhi

ITA 4564/DEL/2012

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2972 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 27-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S L ANURAGI
• Section: 148

Judgement Text

1 ITA 4564/DEL/2012 \IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA : JUDICIAL MEMBER ITA NO. 4564/DEL/2012 ASSTT. YRS: 2007-08 MRS. ARCHANA BHALLA, VS. DCIT, CIRCLE 23(1), S-322A, PANCHSHEEL PARK, NEW DELHI. NEW DELHI-110017. PAN: AAEPB 4065 A ( APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI R.S. SINGHVI CA & SHRI SATYAJEET GOEL CA ASSESSEE BY : SHRI S.L. ANURAGI DR DATE OF HEARING : 17/02/2016. DATE OF ORDER : 03/03/2016. O R D E R PER S.V. MEHROTRA, A.M: THIS IS ASSESSEES APPEAL AGAINST THE ORDER DATED 5.03.2012, PASSED BY THE LD. CIT(A)-XI, NEW DELHI, RELATING TO A.Y. 200 7-08. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HAD FI LED RETURN SHOWING INCOME OF RS. 15,95,532/-, WHICH WAS DERIVED FROM H OUSE PROPERTY, BUSINESS, INCOME FROM CAPITAL GAIN AND OTHER SOURCE S. THE AO OBSERVED THAT ASSESSEE WAS ENGAGED IN THE BUSINESS OF LEASING, FI NANCING AND TRADING IN SHARES IN HER PROPRIETORSHIP CONCERN NAMELY M/S BPO S LEASING. THE ASSESSEE WAS ALSO OWNER OF A PROPERTY AT MULUND, MA HARASHTRA, WHICH ALL THE 2 ITA 4564/DEL/2012 CO-OWNERS WERE DEVELOPING AND SELLING OF AS JOINT C O-OWNERS. THE CO-OWNERS HAD CONVERTED THE LAND @ RS. 1,450/- PER SQ. FT. BA SED ON THE MARKET PRICE PREVAILING IN THAT PERIOD TO STOCK IN TRADE. BESIDE S, RENTAL INCOME WAS ALSO RECEIVED FROM TENANTS OCCUPYING THE PROPERTY WHICH WAS ALSO OFFERED TO TAX BY ASSESSEE. RENTAL INCOME OF RS. 2,222/- HAD BEEN SHOWN BY ASSESSEE BEING 21% SHARE OF TOTAL RENTAL INCOME FROM THE PROPERTIE S SITUATED AT MULAND, MUMBAI. THE AO NOTED THAT IN THE CASE OF SHRI R.S. BHALLA, WHO WAS ALSO HAVING THE RENTAL INCOME FROM JOINT PROPERTY AT MUL AND, MUMBAI, PROVISIONS OF SEC. 23(1)(A) OF THE INCOME-TAX ACT WERE INVOKED IN AY 2006-07 AND AFTER MAKING INQUIRIES FROM BMMC, INCOME FROM HOUSE PROPERTY HAD BEEN ASSESSED AT RS. 11,48,683/- REPRESENTING THE 37% SH ARE ATTRIBUTABLE TO SHRI R.S. BHALLA. ACCORDINGLY, AO ASSESSED INCOME FROM H OUSE PROPERTY AT RS. 6,51,955/-. THE AO REQUIRED THE ASSESSEE TO EXPLAIN AS TO WHY INCOME SHOWN FROM ACTIVITY OF SALE/ DEVELOPMENT OF JOINT PROPER TY AND DIVIDED PROPORTIONATELY AMONG CO-OWNERS MAY NOT BE TREATED AS INCOME OF AOP. 3. THE AO, AFTER CONSIDERING THE DETAILED SUBMISSIO NS, HELD, THAT INCOME SHOWN BY ASSESSEE IN HER INDIVIDUAL HANDS WAS TO BE TAXED IN THE STATUS OF AOP. ACCORDINGLY, AO ASSESSED THE INCOME SHOWN BY A SSESSEE FROM JOINT PROPERTY AT MULAND, MUMBAI IN THE HANDS OF ASSESSEE ON PROTECTIVE BASIS AND SUBSTANTIALLY IN THE STATUS OF AOP. 4. LD. CIT(A) DISMISSED THE ASSESSEES APPEAL ON TH IS COUNT. BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US AND HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. THAT UNDER THE FACT AND CIRCURNSTANCES OF THE C ASE, THE AUTHORITIES BELOW WERE NOT JUSTIFIED TO MAKE ASSESS MENT IN THE 3 ITA 4564/DEL/2012 HANDS OF THE APPELLANT ON PROTECTIVE BASIS AND. NOT ON SUBSTANTIVE BASIS IGNORING THE PAST HISTORY OF THE CASE AND PROTECTIVE ASSESSMENT HAVING BEEN MADE IN VIOLATION OF RULES OF CONSISTENCY TO BE ADOPTED BY THE LOWER AUTHORITIES .. 2. THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED TO DELETE THE SHARE OF INCOME OF THE APPELLANT IN JOINT PROPERTIE S IN MULUND MAHARASHTRA SINCE THEY HAD HOLD THAT THE SAID INCOM E IS ASSESSABLE IN THE HANDS OF R.S.BHALLA AND OTHERS AO P AND THE ACTION OF THE LOWER AUTHORITIES AMOUNTS TO DOUBLE T AXATION OF THE SAME INCOME. 3. THAT THE ASSESSEE CRAVES THE RIGHT TO ADD, AMEND , DELETE OR SUBSTITUTE ANY GROUND OF APPEAL 4. THAT THE ORDERS OF THE LOWER AUTHORITIES AS FRAM ED ARE AGAINST THE FACTS OF THE CASE AND BAD IN LAW. 5. AT THE TIME OF HEARING, LD. COUNSEL FILED BEFORE US A COPY OF TRIBUNALS ORDER DATED 20.11.2012 RENDERED IN DEPARTMENTAL APP EAL BEING ITA NO. 4950/DEL/2012 IN THE CASE OF RANDHIR SINGH BHALLA & FAMILY (HUF), FOR AY 2007-08, DISMISSING THE DEPARTMENTAL APPEAL BY CONFIRMING THE ACTION OF CIT(A), QUASHING THE PROCEEDINGS INITIATED U/S 1 48 FOR MAKING ASSESSMENT IN THE HANDS OF AOP. THUS, NOW THE SUBST ANTIVE ASSESSMENT OF THE INCOME RETURNED FROM MULAND PROPERTIES, MUMBAI HAS TO BE MADE IN THE HANDS OF ARCHANA BHALLA AS INDIVIDUAL, AS RETURNED BY HER AND NOT IN THE HANDS OF AOP. THUS, THE ASSESSEES APPEAL DESERVES TO BE ALLOWED AND THE PROTECTIVE ASSESSMENT MADE IN THE HANDS OF ASSESSEE DESERVES TO BE DELETED. 4 ITA 4564/DEL/2012 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED ACCO RDINGLY. ORDER PRONOUNCEMENT IN OPEN COURT ON 03/03/2016. SD/- SD/- (SUDHANSHU SRIVASTAVA) (S.V. MEHROTRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 03/03/2016. *MP* COPY OF ORDER TO: 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI.